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ELRCDismissedNot stated in the judgment (application dated 28.11.2023; preliminary objection dated 09.04.2024)

Kenya Private Universities Workers Union v KAG East Africa (Cause 308 of 2020) [2024] KEELRC 2044 (KLR)

Employment and Labour Relations Court of Kenya
26 July 2024
BOByram Ongaya
770 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to reconsider its earlier judgment because the worker had already tried the same review once before and lost.

What this practically means

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Executive summary

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This was a ruling on a preliminary objection in a first-instance employment matter before the Employment and Labour Relations Court at Nairobi, delivered by Byram Ongaya, Principal Judge, on 26 July 2024. The claimant had filed a notice of motion dated 28 November 2023 seeking review of the Court's judgment of 10 December 2021, which had declared the respondent's redundancies unlawful for failure to serve the statutory one-month notice under section 40(1)(a) and (c) of the Employment Act, but had dismissed all other prayers for want of proof and ordered each party to bear its own costs. The claimant asserted discovery of new and relevant evidence, including a recognition agreement and unsigned, undated lists of redundant, essential and retired staff, and cited absence of unreasonable delay. The respondent, through Nchoe Jaoko & Co. Advocates, filed a preliminary objection dated 9 April 2024 on three grounds: res judicata under section 7 of the Civil Procedure Act, the Court having become functus officio after the 10 December 2021 judgment, and the application being vexatious, frivolous and an abuse of process. Having canvassed the matter by written submissions, the Court found the application barred by res judicata: a similar review application dated 16 November 2022 had been heard and dismissed with costs in a ruling of 7 July 2023 by Ongaya J, and an earlier application dated 12 May 2022 had been withdrawn. The preliminary objection was upheld on the res judicata ground alone, without any finding on functus officio or abuse of process. The application of 28 November 2023 was dismissed with no costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimant's application dated 28.11.2023 seeking review of the judgment of 10.12.2021 is res judicata, having regard to the earlier application dated 16.11.2022 dismissed on 07.07.2023 and the withdrawn application dated 12.05.2022
  2. 2.Whether the Court is functus officio having delivered judgment on 10.12.2021
  3. 3.Whether the application is vexatious, frivolous and an abuse of court process

Key legal issues

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01

Whether the review application of 28.11.2023 is res judicata

Holding

Yes - the Court upheld the preliminary objection on the ground that a similar application dated 16.11.2022, concerning the same subject matter (review of the 10.12.2021 judgment), had been heard and dismissed with costs in a ruling delivered on 07.07.2023 by Ongaya J, and an earlier application dated 12.05.2022 had been withdrawn.

Reasoning

Section 7 of the Civil Procedure Act bars a subsequent suit or application on the same subject matter between the same parties that has been heard and decided. The record showed the identical review prayer had already been canvassed by written submissions and determined in a ruling of 07.07.2023, and a still earlier application had been withdrawn, so the instant application was barred and the preliminary objection succeeded on that ground alone.

p. 2
02

Whether the Court was functus officio as contended by the respondent

Holding

The Court did not rule on the functus officio ground, having disposed of the preliminary objection on the res judicata ground alone.

Reasoning

Although the preliminary objection raised functus officio (judgment having been delivered by Maureen Onyango J on 10.12.2021) and abuse of process as additional grounds, the Court determined the objection solely on res judicata and made no finding on the remaining grounds, which were therefore not adjudicated.

p. 2

Legal principles established

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  • A second application for review of the same judgment on the same subject matter is barred by the principle of res judicata under Section 7 of the Civil Procedure Act, particularly where an earlier similar application was heard and dismissed with costs

Court orders

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  1. 1.The preliminary objection dated 09.04.2024 is upheld on the ground of res judicata
  2. 2.The application dated 28.11.2023 is dismissed with no costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

BO
majority

Wrote the judgment

Jurisdiction invoked
Original employment and labour relations jurisdiction; review of the Court's own judgment of 10.12.2021 (the judgment does not cite the specific provision)

Relief refused

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Review - setting aside and/or variation of the judgment/ruling of 10.12.2021 on the ground of discovery of new and relevant evidence

The application was barred by res judicata, a similar application dated 16.11.2022 having been dismissed with costs on 07.07.2023

p. 2

Costs

The application dated 28.11.2023 was dismissed with no costs - each party to bear their own costs of the application

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Court finds that indeed the application is chained by the principle of res judicata. The preliminary objection will succeed upon that ground.
p. 2Res judicata barring a repeat review application
The record shows that the applicant filed a similar application for review dated 16.11.2022. The application was dismissed with costs in a ruling delivered on 07.07.2023.
p. 2Factual basis for res judicata
In conclusion, the preliminary objection dated 09.04.2024 is upheld and the application dated 28 .11. 2023 dismissed, and, with no costs.
p. 2Final orders / disposition

Issues in the judgment

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minor

The judgment does not disclose the names of the claimant or the respondent, nor the suit/case number; parties are recorded only by role

minor

Inconsistent description of the 10.12.2021 decision - the preliminary objection calls it a judgment while the claimant's application calls it a ruling

minor

The preliminary objection describes the previous application as dated the 16th of November (2023 context unclear) while the Court's own finding records it as dated 16.11.2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Private Universities Workers Union v KAG East Africa (Cause 308 of 2020) [2024] KEELRC 2044 (KLR)", Case Analysis (2024). Not stated in the judgment (application dated 28.11.2023; preliminary objection dated 09.04.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2044/eng@2024-07-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.